Petition for Writ of Certiorari — Daniel Spottsville, Petitioner v. Georgia

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SUPREME COURT OF GEORGIA

Case No. S21C0864

July 20, 2021

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed.

DANIEL SPOTTSVILLE v. THE STATE.

The Supreme Court today denied the petition for certiorari

in this case.

Nahmias, C.J., Boggs, P.J., and Peterson, Warren, Bethel,

and LaGrua, JJ., concur, Ellington and McMillian, JJ.,

disqualified.

Court of Appeals Case No. A21A0947

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SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk

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SUPREME COURT OF GEORGIA

Case No. S21C0864

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August 24, 2021

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The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed.

DANIEL SPOTTSVILLE v. THE STATE.

The motion for reconsideration having been filed late, it is

hereby dismissed as untimely. Supreme Court Rule 27.

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All the Justices concur, except Ellington and McMillian, JJ.,

disqualified, and Colvin, J., not participating.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

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, Clerk

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Court of Appeals

of the State of Georgia

ATLANTA, February 11, 2021

The Court ofAppeals hereby passes the following order:

A21A0947. DANIEL SPOTTSVILLE v. THE STATE.

In 1998, a jury found Daniel Spottsville guilty of two counts of child

molestation and one count of aggravated assault, and we affirmed the denial of his

motion for a new trial on appeal. See Spottsville v. State, No. A03A0007 (Feb. 4,

2003). In June 2020, Spottsville filed a motion for an out-of-time appeal, which the

trial court denied. Spottsville then filed this direct appeal. We lack jurisdiction.

“An out-of-time appeal is a judicial creation that serves as the remedy for a

frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9)

(2014) (punctuation omitted). Because Spottsville already has had a direct appeal, he

is not entitled to an out-of-time appeal. See Richards v. State, 275 Ga. 190,191 (563

SE2d 856) (2002) (“[Tjhere is no right to directly appeal the denial of a motion for

out-of-time appeal filed by a criminal defendant whose conviction has been affirmed

on direct appeal.”); Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001) (a

defendant “is not entitled to another bite at the apple by way of a second appeal”).

Accordingly, this appeal is hereby DISMISSED. See Richards, 275 Ga. at 191-192.

Court ofAppeals of the State of Georgia

Clerk’s Office, Atlanta, 02/11/2021__________

I certify that the above is a true extract from

the minutes of the Court ofAppeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

C'.lprk

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GEORGIA, MUSCOGEE COUNTY

SUPERIOR/STATE COURT

eFILED

9/18/2020 8:24 AM

DANIELLE F. FORTE, CLERK

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INTHE SUPERIOR COURT OF MUSCOGEE COUNTY

STATE OF GEORGIA

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STATE OF GEORGIA,

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Criminal Case No. SU-98-CR-1445

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DANIEL A. SPOTTSYILLE,

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Defendant.

ORDER

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This matter came before the Court on June 3, 2020, on defendant’s pro se motion for out-

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of-time appeal and on defendant’s affidavit of poverty. After a careful consideration of the filings,

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relevant law, and the entire record of the matter, the Court rules as follows:

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In December 1998, defendant was convicted by a jury in Muscogee County, Georgia, of

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one count of aggravated assault and one count of child molestation. On December 9,1998, the ti ial

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court sentenced defendant to twenty years’ imprisonment on each count, with each sentence to run

concurrently.

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On May 6, 2002, the trial court denied defendant’s motion for new trial.

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On February 4, 2003, the Court of Appeals of Georgia affirmed the trial court.

A determination on direct appeal of a criminal judgment is ordinarily resjudicata. Ward v.

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State, 299 Ga. App. 63, 64 (2009). In addition, particularly when addressing pro se filings, courts

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look to the substance of a motion, rather than the nomenclature of a motion, Felder v. State, 274

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Ga. 870 (2002).

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Here, defendant seeks an out-of-time appeal to challenge, for a second time, his prior

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conviction. Defendant is not entitled to a second attempt to challenge his prior conviction. See

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Watts v. State, 261 Ga. App. 29 (2003). The Court DENIES defendant’s motion for out-of-time

appeal.

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su-98-cr-1445

GEORGIA, MUSCOGEE COUNTY

SUPERIOR/STATE COURT

eFILED

9/17/2020 9:15 AM

DANIELLE F. FORTE, CLERK

Ron Mullins

JUDGE OF SUPERIOR COURTS

TELEPHONE

706/653-4277

FACSIMILE

706/225-4286

GOVERNMENT CENTER

P.O. BOX 1340

COLUMBUS. GEORGIA 31902-1340

September 17,2020

Mr. Daniel A. Spottsville

G.D.C. No. 977050

Johnson State Prison

Post Office Box 344

Wrightsville, Georgia 31096

Re:

State v. Daniel A. Spottsville

Criminal Case No. SU-98-CR-1445

Muscogee County Superior Court

Dear Mr. Spottsville,

I acknowledge receipt of your motion in arrest ofjudgment and motion to modify void sentence, filed June

3,2020.1 did not see a certificate of service showing service of your letter upon the State.

Under the Code of Judicial Conduct, a Judge may not consider ex parte communications (communications

from one side of a controversy) or consider other communications made to him outside the presence of the

parties regarding a pending matter. This rule against ex parte communications is one of the main ways that

the law protects the impartiality of a Judge. It is your obligation to ensure that counsel for opposing parties

are provided a copy of any written correspondence to the Court. Because your motion has already been

filed with the Clerk’s Office, Judge Mullins will not act upon it because it was filed ex parte.

Very truly your

k

Michael L. Baker, Esq.

Law Clerk, The Honorable Ron Mullins

Chattahoochee Judicial Circuit

cc:

George E. Lipscomb, II, Esq.

. District Attorney’s Office for the

Chattahoochee Judicial Circuit

Post Office Box 1340

Columbus, Georgia 31901

glipscomb@columbusga.org

Assistant District Attorney

Ms. Danielle Fortd

Muscogee County Clerk of Superior Court

Post Office Box 2145

Columbus, Georgia 31902

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CHATTAHOOCHEE JUDICIAL CIRCUIT

CHATTAHOOCHEE • HARRIS • MARION • MUSCOGEE • TALBOT • TAYLOR

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GEORGIA, MUSCOGEE COUNTY

SUPERIOR/STATE COURT

eFILED

9/18/2020 8:24 AM

DANIELLE F. FORTE, CLERK

I

Ron Mullins

JUDGE OF SUPERIOR COURTS

GOVERNMENT CENTER

P.O. BOX 1340

TELEPHONE

706/653-4277

FACSIMILE

706/225-4286

COLUMBUS, GEORGIA 31902-1340

September 18,2020

Ms. Danielle Forte

Muscogee County Clerk of Superior Court

Post Office Box 2145

Columbus, Georgia 31902

Re:

State v. Daniel A. Soottsville

Criminal Case No. SU-98-CR-1445

Muscogee County Superior Court

Dear Ms. Fort6,

Please file the enclosed order denying defendant’s motion for out-of-time appeal and dismissing

■ defendant’s affidavit of poverty in the above referenced case.

By copy of this letter, I am providing the State with a copy of the order via Odyssey eFileGa and I am

providing the defendant with a copy of the order via U.S. Mail.

Very truly youre,

V

Michael L. Baker, Esq.

Law Clerk, The Honorable Ron Mullins

Chattahoochee Judicial Circuit

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Enclosure

cc:

George E. Lipscomb, II, Esq. (enclosure)

District Attorney’s Office for the

Chattahoochee Judicial Circuit

Post Office Box 1340

Columbus, Georgia 31901

glipscomb@columbusga.org

Assistant District Attorney

Mr. Daniel A. Spottsville (enclosure)

G.D.C. No. 977050

Johnson State Prison

Post Office Box 344

Wrightsville, Georgia 31096

Defendant Pro Se

CHATTAHOOCHEE JUDICIAL CIRCUIT

CHATTAHOOCHEE • HARRIS ♦ MARION • MUSCOGEE • TALBOT • TAYLOR

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DEPARTMENT OF THE ARMY

HEADQUARTERS, UNITED STATES INFANTRY CENTER

FORT BENNING, GEORGIA 31905-5000

ORDERS 261-2200

SPOTTSVILLE, DANIEL A

GA 31905

18 September 2001

PV1 USA MEDDAC FT BENNING (W2L3AA) FT BENNING

You are reassigned to the U.S. Army transition point shown for transition

processing. After processing, you are discharged from the Component shown.

If

you are delayed in reporting to the transition point, you still must report to

the transition point as soon as possible or as authorized to receive a new

effective date of discharge.

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.Assigned to: US ARMY TRANSITION CENTER (WOU2NT) FORT BENNING GA 31905-5010

Reporting date: 19 September 2001

: Component: RA

Date of discharge unless changed or rescinded:

19 September 2001

Additional instructions: a. Soldiers who reside in on-post family quarters

are required to report to the Family Housing Office, Bldg 399, at least

30 days prior, to their departure to schedule a pre-termination and

termination appointment, b. You must personally clear your local Education

Center, be counseled on VA Educational Benefits, and pick up DA Form 669

(Educational Development Record). c. You are required to undergo a physical

exam prior to separation or have a completed FB Form 128 (Statement of

Option for Medical Examination for Separation/Retirement) prior to your

departure date. d. You are authorized movement of household goods. e.

Government transportation authorized from Ft. Benning, GA to Home of Record

or PLEAD.

f. Report to Transition Point, Bldg. 2622, 2d floor, East Wing,

by appointment, (TEL: 545-1162/1368)'. Bring your MED/DEN/EDUC Records to

include ETS Physical, completed Installation Clearance DD Form 137, TCA

Checklist, and, if applicable, Dependent ID Card(s).g. Official travel

arrangements purchased through a travel agency not under contract to

government is NOT reimbursable

FOR ARMY USE

Auth: AR 635-200

- HOR: SACRAMENTO CA US

Place EAD or OAD: OAKLAND CA

MDC: 7BE1

Format:

501

FOR THE COMMANDER:

***★*******★★*■*★*★*★*★

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OFFICIAL

FORT BENNING, GA

★

DISTRIBUTION:

PV1 SPOTTSVILLE (1)

Cdr USA MEDDAC FT BENNING (1)

TRANSITION PT (moh)

TOTAL: (2)

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JAMES E. BRINSON

ADJUTANT GENERAL

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I affidavit pf custodian

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(Judge Allen)

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Georgia,

Muscogee ________ __ County

I, the undersigned custodian of the defendant do swear and

affirjn that the following information is true and

correct to the best of my knowledge.

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Daniel A. Spottsville

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Name of Defejidaril

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If defendant was confined in a hospital or other institution prior to date sentence

was

imposed

please

indicajte

date entered------Z~19-97----------- :_______ _ and date released

9-23-98

If subject was released on bond or escaped, indicate jdate departed

and date

returned

11-12-98

aiof—days in jaii- tH HfHo!pi,ai °r °,her

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probation 0n Pr°bated sentences received after July 1, 1970, enter jail time prio

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or to date

r to subjects release on

COMMENTS:

SENTENCE DATE: 12-9-98

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before me this 14th

day of

Dec

19 98

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(Custodian of DefepSjjant) y

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Capt.Terri Ezell

(Title)

’■y Commission Expires January 17,1999

Muscngpp Cnnpt-y Shpriff Plop*

(Department) :

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Georgia, (TU-tS COC\ f

County.

I, the undersigned (Ocf^T (Deputy Clerk) of the ....

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_______________ Court, in and fo'r

Sv?’ d° hThZ£eTTy, thr2t the ab0T “ a true^nd C0|mPlete copy-of affidavit of custodian, a part of

the official record of the trial of said defendant, as appears pf Record and form the minutes of said court

Given under my official signature and the seal of the said court

tbis________ 3 [■______ day ofPecehnk^ 19CIS

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(Clcj^r(Deputy Clerk)

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(Seal)

IMPORTANT: The custodian of the defendant shall forward the original and one copy of this document td

the Clerk of the Court. The Clerk of the Court shall retain the: original and shall forward one (1) certified

cop^ of this document to The Georgia Department of Corrections along with the sentence(s), commitment

history, etc., in each case.

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(Authority: Ga. L. 1956, pp.161,171 as amended (Ga. code ann. sec. 77-309); Ga. L. 1970,pp. 692-693) '

PI-520 (8-90)

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